July 1, 2008

McCain emphasized that he would seek out Supreme Court appointees along the lines of Chief Justice John Roberts and Justice Samuel Alito, saying they're the kind of jurists who will rule in favor of crime victims.

"They will be the kind of judges who believe in giving everyone in a criminal court their due: justice for the guilty and the innocent, compassion for the victims, and respect for the men and women of law enforcement," he said. "In all of criminal justice policy, we must put the interests of law-abiding citizens first -- and above all, the rights of victims."...

While McCain noted that Sen. Barack Obama (D-Ill.) criticized [Kennedy v. Louisiana], he suggested that Obama would back the same kind of liberal justices who overruled the Louisiana law this month.

"More to the point, why is it that the majority includes the same justices he usually holds out as the models for future nominations?" he said. "My opponent may not care for this particular decision, but it was exactly the kind of opinion we could expect from an Obama Court."

Obama spokesman Tommy Vietor questioned why McCain would suggest only "an Obama Court" would produce rulings like the kind the Court just issued concerning child rapists, when the GOP senator backed four of the five judges who just ruled the death penalty was not appropriate for such crimes.

"Senator McCain voted for 4 of the 5 judges who supported this flawed ruling, which is why this attack is particularly disingenuous and nothing more than the same old Bush-style politics that the American people are tired of," Vietor said....

What's disingenuous is Vietor's argument. The role of the President and the role of a Senator are very different when it comes to Supreme Court appointments. The President's nomination identifies one person from the pool of possible nominees and therefore has a tremendous amount of latitude in searching for someone who he thinks will decide cases to his liking, who shares his ideology.

A Senator can only question this one individual and vote up or down. When someone with the qualifications of Anthony Kennedy, David Souter, Ruth Bader Ginsburg, or Stephen Breyer is nominated, it is very hard for a Senator to justify voting no, even if he would not have nominated that person. In fact, he should vote yes — out of an understanding of the President's role and respect for the people who elected that President.

Indeed, as I said at the time of his confirmation, it was outrageous to vote against the spectacularly qualified John Roberts:

As to those 22 Democrats who voted no, they have openly embraced an ideological view of the Court from which they can never credibly step back. For them, appointing Supreme Court Justices is a processes of trying to lock outcomes in place, and we shouldn't believe them if in the future they try to say otherwise.

The Dems long ago, at least as far back as the Bork nomination, decided that it was within their province to oppose Republican nominees purely on partisan grounds, and that's what they've been doing since.

When someone with the qualifications of Anthony Kennedy, David Souter, Ruth Bader Ginsburg, or Stephen Breyer is nominated, it is very hard for a Senator to justify voting no, even if he would not have nominated that person.

That's how it should be, and that is how it was. But the Dems have pretty much trashed that of late, haven't they?

JohnTaylor said, "Because his heart goes out to the raped children, not the child rapists."

And sometimes it goes out to burgler and not to the guy trying to defend his DC home. So strange to think that cases should be won by whoever deserves the most empathy. I've got a five year old neice that cries at the thought that ponies don't live forever - empathetic as all get out - she'd make a great jurist.

After hearing Senator Obama's speeches, listening to his answers in the Democratic debates and watching him answer questions in interviews and press conferences, I'm not sure that I believe that the Junior Senator from Illinois is actually capable of "credibly" asserting anything.

McCain emphasized that he would seek out Supreme Court appointees along the lines of Chief Justice John Roberts and Justice Samuel Alito, saying they're the kind of jurists who will rule in favor of crime victims.

They're the kind of jurists who will rule in favor of corporate tortfeasors, too. After 20 years, they cut by 80% Exxon's punitive damages for hiring a rummy to command their Alaskan oil tanker.

He can credibly assert otherwise because those who would claim he's not being credible will not get much of a hearing in the press, and will get shouted down in forums and in blogs, and he'll get away with it.

And sometimes it goes out to burgler and not to the guy trying to defend his DC home.

I don't know what a "burgler" is, but Obama has never said he opposes the common-law right of self-defense in the home, nor the notion that free blacks at the time of the Founding had the right to keep and bear arms outside of connection with organized militia service. He has stated that he supports the Heller decision.

It doesn't matter if he sympathizes with the victims, because the cold, hard truth is that his policies are against them.

Please tell us all what policies Obama has proposed to favor child rapists over raped children. We all await your expert analysis.

But last year he said that he believed the DC ban, which Heller overturned, was constitutional. There is no way to square his two stances. Either he has changed his mind, or he is contradicting himself.

Further, he has supported gun bans similar to DC's throughout his career.

Unless he comes out and specifies exactly what has caused him to change his mind, or do a lot better than he has to explain (and I don't think it is possible to do so) how his two positions are not contradictory, I think it is very fair to say that he is just trying to blunt the damage that his true position would cause to his political chances.

I liked Tom Maguire's comment, 'We don't know Obama well. Why don't we vote for him for president and get to know him better." Obama's strategy now is, IMHO, to mollify the middle, melifluous don't you think. I think he figures we will be mollified, not notice that we still don't know him, and he can be Obama, whoever that is, later.

Ann said..."Surely, this is what Obama wants from a Justice. How can he credibly assert otherwise?

I don't understand how Obama can credibly assert anything after his flip flop on public funding - but you thought that his doing so made his stock go up. So who can tell how his pronouncements will be understood and what credibility they will be assigned by listeners?

Jeremy said... "So strange to think that cases should be won by whoever deserves the most empathy."

Particularly since, at the level of the Supreme Court, a case isn't about these litigants. The job of the court is to expound and explain neutral, general principles of law and measure the litigant's cases against those standards. To do it the way that Obama prefers is to abandon the rule of law to the luck of the draw: a case will produce a horrendous rule, producing real injustice in thousands of cases in the courts below, and for what? Because that rule was the only way the court could come out for a litigant they thought deserved empathy. Of course Lilly Ledbetter was screwed by Title VII; should the court have adopted the loony rule she through counsel advanced just because they felt sympathetic for her? Obama would answer yes, we must suppose. Or would do, if he actually gave straight answers.

former law student said... "They're the kind of jurists who will rule in favor of corporate tortfeasors, too. After 20 years, they cut by 80% Exxon's punitive damages for hiring a rummy to command their Alaskan oil tanker."

An opinion written (beautifully as ever) by that notorious member of the right wing cabal Justice Souter. One interesting thing about the Exxon case, from my perspective, is how good a rebutal it provides to those who accuse Scalia and Thomas of voting their preferences; in this case, you can infer that they don't think much of punitive damages, but then you go look at cases like BMW v. Gore and Phillip Morris and they're leading the charge against limits on punitive damages. I guess they're not voting their preferences after all!

John said..."Please tell us all what policies Obama has proposed to favor child rapists over raped children."

I'll let Rev answer for himself, but as immediately relevant to this thread, if I can stretch the meaning of "policies" and "proposed" a little, he has made clear that he will appoint justices more like those in the majority in Kennedy than those in the minority. There's no credible or serious basis in the Constitution for what the court did in that cases; no serious argument that doctrinal considerations, the "evolving standards of decency" required it (claiming that there is a national consensus when four of nine members of the court and both the major party's nominees condemn the result doesn't even pass the laugh test); not even any precedent, if one takes Atkins seriously (that case's "direction of change" test is roadkill after Kennedy, if it ever had life as anything more than a figleaf). What are we left with? The only basis for voting for that result if you're on the court or approving of it if you're not is because you - as a matter of personal politics and morality - disapprove of the death penalty. That's all there is - it is an exercise of raw judicial power, clothed by Kennedy's opinion for the court in the most gossamer garb. What can we make of a man who would appoint such judges?

In fact, he should vote yes — out of an understanding of the President's role and respect for the people who elected that President.

What happens if the people elect someone of the caliber of George Bush and he wants to appoint Harriet Miers? Anyways none of this has anything to do with shiny keys like rapes, abortion, gay marriage - it has everything to do with protecting corporations by denying ordinary people access to the courts.

JohnTaylor88 said... "Like all native and fluent speakers of English, I do not consider judicial nominees to be policies."

Not a very satisfying rejoinder, although I agree (as I must, having done so myself) that Enigmaticore could have more carefully framed the point. Still, though: it's all well and good for Obama to say that he favors executing child rapists, because he no longer has to worry about living up to that. Mommy has set a boundary. It's a "have your cake and eat it strategy" - secretly, you abhor X, but you need to say that you favor X to win some key constituency. Never fear! You intend to appoint judges that will hold X to be unconstitutional. Now you can claim to be for X without suffering any reprisal for not doing it, and without having to admit your real view!

Charlie Rose(for it is he): "President Obama, you promised before the election that you'd do X. You didn't. Why?"Barack: "Look..." [waffle waffle evasive waffle; translation: 'It wasn't that I didn't try to do X, it wasn't that I didn't want to, it was that Mom said I couldn't']!" The Dogs that Didn't Bark: "But of course, Comrade - and we shall say nothing of the fact that your appointees to the court provided the necessary votes for Mom to prevent you from doing X!"

Obama uses a similar strategy all the time, as other commenters have noted passim: announce his agreement with a policy as a general matter, but hedge it in with so many qualifications and considerations that no policy could ever be enacted in the real world.

"Like all native and fluent speakers of English, I do not consider judicial nominees to be policies."

If you were nearly as savvy as your attempt to be condescending would indicate, you would have noticed that I put those little apostrophes around 'policies' to indicate that I was meaning akin to policies. And since I further explained just what I was getting at, it must take an amazing degree of shallowness or a desire to be obnoxiously obtuse to have not grasped it.

I am surprised with the speed that Obama is demonstrating his deceit in apparently willing to say whatever is necessary to further his ambition and campaign. The argument about McCain voting for four of the five justices is, of course, malarky. But beyond that, his first add claimed he "passed" a law providing increased benefits to veterans when he did not even vote and it passed with about 94 votes, and now his second ad claims he passed welfare reform legislation that moved 80% of welfare recipients off the rolls - the truth is that he has expressed opposition to the 1996 welfare reform act that moved people off welfar and the law that is referred to in the ad is a minor Illinois state law.

I realize all candidates exaggerate their accomplishments, but Obama takes it to a whole new level. He is pretty masterful at evasive answers, but I would be surprised if it works long term. There is a very critical story about his ad at ABC news. The media obviously wants Obama elected, but it is conceivable that continued dishonesty from him could cause some media to tell the truth just to preserve their dignity.

garage mahal said... "What happens if the people elect someone of the caliber of George Bush and he wants to appoint Harriet Miers?"

I think everyone -- even those who question whether Senators should inquire only as to qualification -- agrees that Senators should reject a nominee who isn't qualified, and Miers didn't even pass the laugh test. (It was a nervous, queasy laugh, at that - I was there.) It was akin to nominating your personal CPA to head the Federal Reserve, or that guy who runs your favorite paintball place to be chairman of the joint chiefs.

"[This] has everything to do with protecting corporations by denying ordinary people access to the courts."

I would argue that an overarching theme that emerges from the vision of Article III standing consistently championed by the conservative side in both the Supreme Court (e.g. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998); Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (Scalia, J., dissenting); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)) and in the courts below (e.g. MainStreet Org. of Realtors v. Calumet City, 505 F.3d 742 (7th Cir. 2007) (Sykes, J., dissenting); Winkler v. Gates, 481 F. 3d 977 (7th Cir. 2007) (Sykes, J., concurring); Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985) (Bork, J., dissenting)), and usually fought strenuously by the liberal side of the court (e.g. Laidlaw, supra; Massachusetts v. EPA, 549 U.S. 497 (2007); Sprint Communications v. APCC Services, 554 U.S. __ (2008)) is quite the opposite: making sure that the people litigating in court are ordinary people. Ordinary people with real injuries to be redressed, caused by the litigants duly haled into the other side of the courtroot. And that legal system congestion caused by illigitimate public interest litigation has the effect of closing the courtroom door to such ordinary people.

If you were nearly as savvy as your attempt to be condescending would indicate, you would have noticed that I put those little apostrophes around 'policies' to indicate that I was meaning akin to policies.

I'll take this as an admission that you cannot point to any proposals by Obama to favor child rapists over raped children.

And I will take your reply as an admission that you understand that Obama will nominate justices who will do just that, so he can have plausible deniability.

No. I believe that Obama has no interest in policies that favor child rapists over raped children. As proof, I cite his actual statements on the issue.

I further believe that no Justice has ever been appointed for his attitude toward child rape. If you can find a confirmation hearing in which any potential Justice who was later confirmed was asked about child rape, I would be happy to review the transcript.

My guess is that ultimately Ann and most smart people with go with McCain because: (1) they will grow tired of Obama's disingenuousness; (2) they will be serious about national security and terror; and (3) they will conclude that Obama's intelligence and ambition are not sufficient qualifications for president. None of which means Obama will necessarily lose. If he wins, we will need to hope for the best on terror (including the possibility of some independence and seriousness from Obama when he is actually in the job) and to withstand at least a four year slide into excessive government on domestic matters.

The typical, predictable, right-wing boneheads around here would have you believe that drawing the death penalty line for child rapists is tantamount to ... well, refusing to overturn Roe v. Wade, and approving tacitly of the "murder" of millions of "children" annually. You don't fool me Simon, and nor does not so EnigmaticBore. You guys get hot under the collar, and holier than thou about such hot button issues because you live most of your lives in the proverbial gutter. We are not going to let you use subterfuge and your phony moral superiority to outlaw abortions. You will not be allowed to rape us anally until were are unconscious. We are on to you and your real goals. You've been outed by me, here and now, and forever more. Play us for suckers, will you. I've got something for you to suck on. Devils!

Take abortion or gun control or this issue now... he says a lot of one thing, votes a lot of another (if he can be said to vote "a lot") and how can we claim he's presented a policy of any sort?

With the D.C. gun thing he says he's all for viewing gun ownership as an individual right... that cities can infringe whenever they feel a little bit uncomfortable. So shall we proclaim that he is for gun rights and ownership? On what grounds? That he feels everyone has a human right to self-defense may reflect words that come out of his mouth but one has to wonder why he supports limiting that right so easily.

And this... he says the judges he would nominate were wrong. Did he say that he would nominate judges more like the ones he says were right? No. He didn't. So again, he's going to say he believes one thing and then do something that will have a different result. How grand!

John,Despite the attempt to throw up a verbal smokescreen (concededly facilitated here by poor wording on my part), I think you would have to concede that Obama has stated committed himself to appointing justices who would have voted with the majority in Kennedy. And I believe that after Kelo, that decision is perhaps the least likely to endure of any recent Supreme Court decision. Atkins and Roper were wrongly-decided, in my view, and I would vote to overrule them myself; in all reality, though, we're stuck with them. This court is not going to overrule them. But I think that Kennedy will not endure for the ages; I don't think it'll endure the next retirement from its majority if McCain appoints the replacement. It should be obvious that would-be child rapists benefit from the decision, so the question becomes: do you really want to argue that Obama's appointees are as likely (or at all likely) to overrule Kennedy If not, then whatever Obama's opinions on the death penalty as a policy matter won't be as relevant as his Supreme court appointments.

To register another concession (if it can be so characterized), I've indicated here more than once that I don't think anything Obama says enjoys as much as a rebuttable presumption of credibility after his flip flop on public funding, so really we shouldn't be worrying about what he says, we should be looking at revealed preference. Is there anything that on those terms that would suggest that his appointees will overrule Kennedy?

One interesting thing about the Exxon case, from my perspective, is how good a rebutal it provides to those who accuse Scalia and Thomas of voting their preferences;

Huh? McCain emphasized that he would seek out Supreme Court appointees along the lines of Chief Justice John Roberts and Justice Samuel Alito -- who formed the majority in Exxon Shipping v. Baker. What inspired you to talk about Scalia and Thomas?

Despite the attempt to throw up a verbal smokescreen (concededly facilitated here by poor wording on my part), I think you would have to concede that Obama has stated committed himself to appointing justices who would have voted with the majority in Kennedy.

There is no verbal smokescreen that I see.

You are smarter than this. Saying you would appoint Justices in the mold of a particular group of judges that you think are sensible in general does not commit you to their every decision or every vote that they cast. That's like saying if you voted for Bush, then you agree with each and every policy decision he has made. Absolutely ridiculous.

It is furthermore totally assinine and small-minded to ignore that McCain has vowed to appoint Roberts and Alito clones even though they both think McCain-Feingold was blatantly unconstitutional legislation and are poised to strike it down piece by piece. Not to mention that McCain voted for four of the Justices who voted in the majority in Kennedy. So your point is not merely a matter of infelicious phrasing, it's a matter of incoherence, inconsistency, and illogic. Instead of trying to stretch beyond the bounds of logic, grammar, and common decency to attack Obama, simply accept that you don't have any evidence whatsoever that he favors child rapists over raped children, and that presuming as much is absolutely ridiculous, because no one in their right mind supports child rapists over raped children, not even Anthony Kennedy, who wrote that stupid decision.

Why you feel the need to smear Obama with such illogical trash is beyond me, but it is obviously beneath you.

One state makes a consensus, given that we're talking about a state law -- at least until Congress passes a law forbidding the death penalty for child rape.

The Constitution allows the death penalty for child rape. Child rape was punished by death before the Constitution was written and for nearly two centuries thereafter. No amendment has ever been passed to restrict the death penalty in cases of child rape, ergo it remains Constitutional to ban it.

Unless you've got five or more of Obama's favorite judges in the Supreme Court, that is. If showing mercy to child rapists requires ignoring the Constitution, why, they're ready to take that challenge.

That would make sense if Obama hadn't explicitly disagreed with the decision.

He claims to, you mean.

But actions speak louder than words, and by his actions Obama supports the leftist justices who made the decision. You don't get to support someone and then only take credit for the *good* things they do.

I think this discussion about child rapists is disingenuous. If you guys really cared about poor, hungry kids you wouldn't be Republicans, now would you? Bush gave tax breaks that helped his already rich buddies. He has no plans, never did, to help homeless kids. It's all about greed, folks, don't you know? You can never be too rich or too thin; that is the sick American ethic that you heartily promote. Buy a lottery ticket and live in the insane, unrealistic hope of becoming fabulously rich like queen of mean, Leona Helmsly, who left $12,000,000 to her dog and zilch to her grandchildren. You people are so sick. We are all paying the price for Bush's folly in a currently messed up economy. I would hang my head in shame if I were you. And what if my 93 year old grandmother were gang raped, anally penetrated with penises and foreign objects then forced to fellate the men afterwards. Have you no respect for my grandmother by not permanently ridding the planet of such monstrous criminals? Yes, I know, you guys don't really give a crap for the young OR the old, as evidenced by your desire to do away with Social Security. Your buddy Bush tried but failed in his attempts to really throw all our grandmas under the bus by eliminating grandma's favorite government program, S.S. You guys are truly warped in your sorry belief system and misguided in your poor judgment. Your lives are basically worthless, even if I have to point it out myself.

Child rape was punished by death before the Constitution was written and for nearly two centuries thereafter. No amendment has ever been passed to restrict the death penalty in cases of child rape, ergo it remains Constitutional to ban it.

Why stop there? All felonies were once punishable by death -- let's bring that back. And instead of fining misdemeanants, let's bring back flogging in the public square. I don't recall an anti-flogging amendment either. I'd like to see a drunk driver being lashed, myself.

former law student said..."What inspired you to talk about Scalia and Thomas?"

It was just a tangent. I find such things interesting (another example of the same is Justice Breyer's criticism - on and off the bench - of Printz as likely to encourage the growth of federal bureaucracy - a result that all the court's conservatives would frown on as a policy matter, one might think).

"Why stop [at child rape]? All felonies were once punishable by death -- let's bring that back. And instead of fining misdemeanants, let's bring back flogging in the public square. I don't recall an anti-flogging amendment either. I'd like to see a drunk driver being lashed, myself."

I think you think that's a reductio ad absurdum, but it actually isn't. Why would it be absurd to conclude that all those things could be done by a valid statute unless one assumes that the Eighth Amendment includes the counting heads test, authorizing the courts to shut down outlier practices (and assuming only a few jurisdictions seek to do it? Why not leave it to the discretion of the legislature? After all, if society's evolving standards of decency are the test, who are more sensitive to contradicting the public's views than those likely to be steamrollered by them, viz. those whose tenure depends on the public's votes? It seems to me that a practice approved by anything more than one or two outlier states is ipso facto within the boundaries of society's standards of decency; practices that contravene such tend to be weeded out by virtue of being unpopular. That they may not be within the standards of decency of one faction of society (liberals, for example, or the criminal defense bar) is quite another matter. I think one can be opposed to all those things - indeed, find them contrary to any standard of decency - yet still believe that the Eighth Amendment poses no bar to it. You're kind of assuming the answer as to what the amendment does. Albeit with a century of jurisprudence on your side - but how long was Swift the law of the land, again?

John,Certainly "[s]aying you would appoint Justices in the mold of a particular group of judges that you think are sensible in general does not commit you to their every decision or every vote that they cast," but the limitations of your view here are demonstrated by the analogy you offered up in your 6:52 AM comment on a similar point.

Everyone would agree that you can support a justice or a priest for their respective judicial philosophy or theological views, and at the same time denounce them for actions undertaken in a personal capacity. Tipping badly, for example, may be done while a judge but not qua a judge.

Likewise, most people would agree with you to this extent: you can support a justice generally, and with no contradiction denounce her when she reaches results that are outliers, or that seem to stand in tension with her philosophy generally. For example, I don't agree with Randy Barnett's criticism of Justice Scalia's position in Raich, but I understand it, and more generally, I understand the criticism he gets for Bush v. Gore even while thinking it's a mistake.

The result in Kennedy, though, is not some weird outlier that stands in stark tension with, say, Justice Breyer's judicial philosophy. It is squarely within the compass of the past decisions and philosophies articulated by and inferred from the justices Obama has indicated he prefers. There was never any doubt which side the liberal bloc was going to come down on in Kennedy, any more than there was any doubt which way they would vote in Atkins, Roper - or, for that matter, in Bush v. Gore (those who criticize the majority in that case for taking a position that "just happened" to favor the candidate they supposedly preferred usually seem blissfully unaware of the concomitant blind spot in the view of the case, viz. that the minority also "just happened" to favor a position that benefitted the candidate that they voted for). If McCain had said he wanted to appoint judges in the mold of Scalia, he could credibly criticize Scalia's position in a case like Green v. Bock Laundry Machine Co. - but he could scarcely denounce Heller, which is prototypically Scalian. Likewise, Obama could certainly denounce Justice Breyer's position in the Texas Ten Commandments case, because it arguably - I stress arguably and take no position on the matter myself - falls afoul of what he's written and from what revealed preference tells us about his actual philosophy. But he could scarcely denounce Breyer's dissent in Lopez, an opinion that reeks of the Breyerian approach. Kennedy is squarely in the path of the judges Obama lauds, not on the sidelines, and for that reason Obama can't wriggle off the hook so easily.

Your argument that McCain voted for members of the majority has already been ably raked over the coals by Ann (I need not endorse the view of how Senators view their task vis-a-vis nominations in order to recognize that McCain holds that view, and it is the latter that is of relevance here). The point about BCRA has some real bite, though, and that's probably your strongest argument.

"no one in their right mind supports child rapists over raped children, not even Anthony Kennedy, who wrote that stupid decision."

The majority does, because as I noted above, there is no coherent reason available to vote for Kennedy if not. The only possible reason that I can see would be if Coker controlled the issue - but the majority disclaimed that view of Coker (wrongly, in my view).

It is squarely within the compass of the past decisions and philosophies articulated by and inferred from the justices Obama has indicated he prefers.

That's garbage. First, you do not get to decide what about Breyer, Souter, and Ginsburg Obama finds "sensible." Second, "squarely within the compass of" is just weasel language for someone who has no evidence to back up his claims.

Among all the ridiculous arguments by the left, the attempt to equate voting for a judge as a Senator (before any of their decisions are known) to praising a judge after 14 years on the bench and using them as your model nominee is probably one of the more ludicrous.

Obama's model judges have been in the majority in Kelo and Kennedy, and the minority in Heller. If Obama disagrees with all these decisions, why are they his model judges? Why did he vote against Roberts and Alito?